The 5-4 decision came down yesterday. In an opinion written by Scalia, the Second Circuit’s speech-protective ruling in Fox v. FCC was overturned. (Prior decision discussed here) At least the Court left open the question of whether the FCC’s policy might violate the First Amendment in certain circumstances.

Scalia says vaffanculo to the First Amendment (what else is new, lately)

Scalia flatly rejects any notion that he might have a responsibility to examine the First Amendment issues in the case.

The Second Circuit did not definitively rule on the constitutionality of the Commission’s orders, but respondents nonetheless ask us to decide their validity under the First Amendment. This Court, however, is one of final review, “not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). It is conceivable that the Commission’s orders may cause some broadcasters to avoid certain language that is beyond the Commission’s reach under the Constitution. Whether that is so, and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case. Meanwhile, any chilled references to excretory and sexual material “surely lie at the periphery of First Amendment concern,” Pacifica, 438 U. S., at 743 (plurality opinion of STEVENS, J.). We see no reason to abandon our usual procedures in a rush to judgment without a lower court opinion. We decline to address the constitutional questions at this time. (Op. at 25-26)

In other words, Scalia gives a big “fuck you” to the principles laid out in two key First Amendment cases. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984) (”[I]n cases raising First Amendment issues . . . an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’” (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964)).

On what grounds did the Court overturn the Second Circuit’s ruling?

The Second Circuit said that the FCC acted arbitrarily and capriciously in suddenly changing its three decades old position that “fleeting expletives” are not actionably indecent. The Second Circuit said that some of the FCC’s justifications for its new policy, in contrast to the earlier policy, were “divorced from reality“.

Scalia’s view is that as long as the FCC can come up with any articulable rationale for its rule, and it could have enacted the rule in the first place, it doesn’t need to have a more detailed reason to change the rule. The Constitution be damned:

In this appeal from the Second Circuit’s setting aside of Commission action for failure to comply with a procedural requirement of the Administrative Procedure Act, the broadcasters’ arguments have repeatedly referred to the First Amendment. If they mean to invite us to apply a more stringent arbitrary-and-capricious review to agency actions that implicate constitutional liberties, we reject the invitation. (Op. at 12)

Nevertheless, the analysis of the administrative procedures act and an agency’s rule-making authority is, quite honestly, too dull for me to get into in depth. (A future update may change this). Suffice to say that the FCC can change the rules if it has some reason to do so.

But here is where it gets exciting.

Are you sitting down? Good. Read this from a concurrence in the case.

I write separately, however, to note the questionable viability of the two precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); FCC v. Pacifica Foundation, 438 U. S. 726 (1978). Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity. “The text of the First Amendment makes no distinctions among print, broadcast, and cable media, but we have done so” in these cases. (Concurrence at 1)

Guess who wrote that… wait for it… waaait for it.

Clarence Thomas!

Yeah, THAT Clarence Thomas.

Holy shit, it gets better.

First, instead of looking to first principles to evaluate the constitutional question, the Court relied on a set of transitory facts, e.g., the “scarcity of radio frequencies,” Red Lion, supra, at 390, to determine the applicable First Amendment standard. But the original meaning of the Constitution cannot turn on modern necessity: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” District of Columbia v. Heller, 554 U. S. ___, ___ (2008) (slip op., at 63). In breaching this principle, Red Lion adopted, and Pacifica reaffirmed, a legal rule that lacks any textual basis in the Constitution. (Concurrence at 3)

When, oh when, will the FCC learn that it too is governed by the First Amendment?

The Third Circuit held that although the FCC possesses the authority to regulate indecent television content, it “had long practiced restraint in exercising this authority.” (Opinion at 13). This restraint had previously limited the FCC to find that broadcast material was indecent only in a few occasions “where programming contained indecent material so pervasive as to amount to ‘shock treatment’ for the audience.” (Opinion at 13).

During this entire period, the FCC consistently had a policy that isolated or fleeting material was not actionable indecency.

At the time of the infamous “wardrobe malfunction,” this policy was still in effect. However, in a blatant move to pander to the “values voters” who ushered in the Bush regime, the FCC decided to change this policy without notice or explanation immediately once the Super Bowl XXXVIII “wardrobe malfunction” hit the airwaves.

The Third Circuit found that while the FCC has the privilege of changing its policies, it must do so reasonably and not in an arbitrary or capricious manner. For engaging in this ambush-style policy change, the Third Circuit found the FCC’s actions “arbitrary and capricious under the Administrative Procedure Act as applied to CBS.” (Opinion at 14).

Additionally, the Third Circuit found that the FCC’s decision to hold CBS liable for Janet Jackson and Justin Timberlake’s halftime show performance was improper. Since Janet Jackson and Justin Timberlake were independent contractors, trying to hold CBS accountable was unlawful.

The First Amendment precludes the FCC from sanctioning CBS for the indecent expressive conduct of its independent contractors without offering proof of scienter as an element of liability. And, it is unclear whether the FCC correctly applied a “willfulness” standard to find CBS liable for failing to prevent the Halftime Show’s indecency. (Opinion at 50)

This decision is not only very satisfying to me as a First Amendment advocate, but it also has the right tone when considered in light of Deborah Taylor Tate’s recent statement that “the law is simple. If a broadcaster makes the decision to show indecent programming, it must air between the hours of 10 p.m. and 6 a.m. This is neither difficult to understand nor burdensome to implement.”

Hopefully Ms. Taylor Tate and her asshat colleague, Kevin Martin, will now also learn that the First Amendment is also neither difficult to understand nor burdensome to follow.

In an unusually aggressive step, Fox Broadcasting yesterday refused to pay a $91,000 indecency fine levied by the Federal Communications Commission for an episode of a long-canceled reality television show, even as the network fights two other indecency fines in the Supreme Court.

The FCC proposed fining all 169 Fox-owned and affiliate stations a total of $1.2 million in 2004 for airing a 2003 episode of “Married by America,” which featured digitally obscured nudity and whipped-cream-covered strippers.

Fox appealed immediately after the FCC ruling. Last month — four years later — the FCC changed its mind, saying it would fine only the 13 Fox stations located in cities that generated viewer complaints about the program. That reduced the fine to $91,000.

Despite the sharp reduction, Fox said it would not pay the fine on principle, calling it “arbitrary and capricious, inconsistent with precedent, and patently unconstitutional” in a statement released yesterday. (source)

This isn’t as aggressive of a move as the Post seems to think. Fox has not exactly “refused” to pay, but has filed a motion for reconsideration. Given the fact that the FCC is ruled by a majority that is completely bat-shit crazy, I don’t imagine that they have it in their mental or emotional capacity to say “yeah, we were wrong.”

FCC Commissioner Michael Copps said he had asked the chairman of the FCC to open an inquiry into the February 24 incident at WHNT, a CBS affiliate in Huntsville, Alabama, in which civil rights footage from the 1960s was blacked out.

“The FCC now needs to find out if something analogous is going on here,” Copps said at a luncheon with media watchdog groups. “Was this an attempt to suppress information on the public airwaves, or was it really just a technical problem?”

Unfortunately, the chairman of the FCC is none other than Kevin Martin. I doubt that he’ll be able to stop obsessing over dirty words on TV broadcasts long enough to actually do his job.

Comments Off on Will the FCC really do something useful? | censorship, fcc | Permalink Posted by marcorandazza

Last year, an appeals court in New York blocked the Federal Communications Commission from enforcing its new rule against “fleeting expletives.” And Bush administration lawyers had urged the Supreme Court to take up the dispute and to give the FCC a green light to enforce the new policy.

The appeal was considered by the high court in its closed conference on Friday, but the justices did not say today whether they had agreed to hear it or deny it.

Lawyers for Fox TV and the other networks had urged the justices to stay out of the case. They said the FCC should be forced to explain why the agency had changed course in 2004 and adopted a near zero-tolerance policy for broadcast expletives.

The FCC case could be decided narrowly by focusing on whether the agency had justified its new policy. Or the justices could focus broadly on whether the 1st Amendment’s free-speech guarantee shields broadcasters from being fined for inadvertently allowing an expletive to be aired during a live performance.

Network executives say they have a firm policy against broadcasting vulgar words during the hours when children and families are watching. On occasion during a live broadcasts, however, guests or performers have uttered the f-word, and a network monitor failed to bleep it out in time.

The incidents cited by the FCC occurred during the broadcasts of entertainment industry awards shows.

If the court eventually votes to take up the case, FCC vs. Fox TV, it will be heard in the fall. If the justices deny the appeal, the FCC will have to try again to persuade a lower court to allow its new rule to be enforced.(source)